The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID ALFRED KELSEY, Case No. 2:18-cv-1021-SI
Plaintiff, OPINION AND ORDER
v.
BRAD CAIN, et al.,
Defendants.
David Alfred Kelsey. Plaintiff pro se.
Ellen F. Rosenblum, Attorney General, and Andrew Hallman, Assistant Attorney General,
OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for
Defendants.
Michael H. Simon, District Judge.
Plaintiff David Kelsey is an inmate in the custody of the Oregon Department of
Corrections (“ODOC”) incarcerated at the Snake River Correctional Institution (“SRCI”).
Defendant Brad Cain is the Superintendent of SRCI. Defendants Dr. Garth Gulick and Dr. Bryon
Hemphill are medical doctors employed by ODOC to work at SRCI. Plaintiff filed this pro se
lawsuit under 42 U.S.C. § 1983, alleging that Defendants violated Plaintiff’s constitutional rights
under the Eighth Amendment’s Cruel and Unusual Punishment Clause by failing to provide him
with adequate medical care. 1 Specifically, Plaintiff alleges that Dr. Gulick improperly denied
Plaintiff’s initial request for hernia surgery. Plaintiff also contends that Dr. Hemphill treated
Plaintiff’s abdominal and hernia pain by merely giving him antacid. Plaintiff further claims that
his treatment by both doctors led to Plaintiff’s initially-scheduled hernia surgery being canceled
and not promptly rescheduled. Finally, Plaintiff bases his claim against Mr. Cain solely on his
role as Superintendent of SRCI.
Defendants have moved for summary judgment. They argue that Drs. Gulick and
Hemphill were not deliberately indifferent to Plaintiff’s medical needs and, further, are entitled
to qualified immunity. Defendants also assert that Plaintiff’s claim against Superintendent Cain
fails because no reasonable juror could find that Mr. Cain was personally involved in the
incidents that allegedly denied Plaintiff’s constitutional rights. For reasons stated below,
Defendants’ motion for summary judgment (ECF 41) is GRANTED.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
1 The Eighth Amendment’s Cruel and Unusual Punishment Clause applies to the states by
operation of the Fourteenth Amendment.
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
Plaintiff is proceeding pro se in this action. Consequently, the court “must consider as
evidence in his opposition to summary judgment all of [Plaintiff’s] contentions offered in
motions and pleadings, where such contentions are based on personal knowledge and set forth
facts that would be admissible in evidence, and where [Plaintiff] attested under penalty of
perjury that the contents of the motions of pleadings are true and correct.” Jones v. Blanas, 393
F.3d 918, 923 (9th Cir. 2004) (citing McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987)). The
Court also must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
BACKGROUND
Plaintiff alleges that his medical treatment at SRCI violated his constitutional rights under
the Eighth Amendment to be free of cruel and unusual punishment. On July 20, 2015, Plaintiff
first reported pain from a ventral hernia2 to Dr. Gulick and requested surgery. Dr. Gulick
forwarded Plaintiff’s surgery request to the Therapeutic Level of Care Committee (“TLCC”) of
ODOC. ECF 42 at 3, ¶ 10. Two days later, the TLCC denied Plaintiff’s request for surgery,
recommending instead that SRCI medical personnel “follow as morbid obesity & reconsider if
sg[significant] wt [weight] loss.” Id. at 68. Instead of surgery, Plaintiff was prescribed
2 A ventral hernia is “a bulge of tissues through an opening of weakness within the
abdominal wall muscles.” ECF 42 at 3, ¶ 9.
“ranitidine, a type of antacid and antihistamine, salsate, a nonsteroidal anti-inflammatory drug,
and pantoprazole, a proton pump inhibitor, to help with his abdomen pain and esophagus issues.”
Id. at 3, ¶ 12. Plaintiff, however, alleges that Dr. Gulick told Plaintiff that the TLCC denied
Plaintiff’s surgery because it was “too expensive.” ECF 47 at 2.
Three months later, Plaintiff sent a health service request, alerting medical staff of his
abdominal pain continuing “for a long time,” and complaining that the antacid was not “working
anymore.” ECF 42 at 73. The following day, SRCI notified Plaintiff that he was scheduled to see
an ODOC Health Services provider to address his abdominal pain. Id. at 3, ¶ 14. At Plaintiff’s
December 28, 2015 appointment, Dr. Hemphill recommended an endoscopy. Id. at 3, ¶¶ 15-16.
An endoscopy is a nonsurgical procedure to examine a person’s esophagus, stomach, and upper
part of the small intestine. See, e.g., https://www.mayoclinic.org/tests-
procedures/endoscopy/about/pac-20395197.
On January 26, 2016, Dr. Hemphill gave Plaintiff an antacid for his abdominal and hernia
pain, even though Dr. Hemphill knew “about [Plaintiff’s] repeated complaints about abdominal
pain that had continued for some time.” ECF 47 at 2. During this visit, Dr. Hemphill and Plaintiff
discussed Plaintiff’s endoscopy approval, proper eating habits, and nutrition. ECF 42 at 4, ¶ 17.
A medical provider outside the ODOC, Dr. John Phillips, conducted Plaintiff’s
endoscopy on February 23, 2016. Id. at 4, ¶ 18. After the procedure, Dr. Phillips noted that “the
esophagus was somewhat tortuous,” with a “slight hiatal hernia,” and that Plaintiff “possibly had
a blood clot, which was not removed.” Id. at 57-58. As a result, Dr. Phillips proposed protein
pump inhibitors, a class of medication. Id. at 58.
About ten months later, Plaintiff submitted another health service request that complained
of abdominal pain, noting that his medications were no longer working, observing that “his
stomck [sic] and bowls [sic] are out further now,” and stating that this was an ongoing problem
for the past two years. Id. at 72. Two days later, Plaintiff visited the sick call nurse, felt pain
upon palpitation, and reported a change in his comfort levels. Id. at 21. This visit prompted the
TLCC to approve Plaintiff for a surgery consultation. Id. at 62.
During Plaintiff’s surgery consult on April 14, 2017, Dr. Dwaine Tesnohlidek, an outside
healthcare provider, noted that Plaintiff had a “large ventral incisional hernia” that “needs
repair,” and provided his recommendations for pre-operation. Id. at 61. On May 26, 2017,
Plaintiff had another consult for his abdominal pain with Dr. Robert Korn at St. Luke’s Clinic
Bariatrics and General Surgery-Boise. Id. at 64-65.
On July 19, 2017, Plaintiff sent an inmate communication form to SRCI staff, expressing
growing impatience and anticipating surgery. Id. at 70. Plaintiff stated that he had been in pain
for three years, his hernia increased in size every day, he was uninformed about the pre-operation
logistics, he felt like he was “being slow played,” and he “needs to get a lawyer.” Id.
Dr. Hemphill responded, stating that “[he] agree[d] it seems like a long time” and that he had no
idea why it takes this long to get a hernia surgery. Id.
On September 11, 2017, Dr. Korn examined Plaintiff before Plaintiff’s anticipated hernia
repair surgery. Dr. Korn found that Plaintiff “had incarcerated fat and bowel located immediately
below the line joining the two rectus muscles with a deficit of several centimeters between the
rectus sheaths.” Id. at 55-56.
On September 21, 2017, Plaintiff submitted another inmate communication form,
following up with SRCI. Plaintiff stated that he was told to stop taking his medications on
August 14, 2017 and September 13, 2017. Id. He also declared, “between my back and shoulder
pain, my pain level is through the roof.” Id. An SRCI health staff member responded, “I’m sorry
it has taken longer than expected. It has been outside of our control. Please be patient [and] you
will be seen soon.” Id.
On September 26, 2017, Plaintiff was admitted to the hospital for hernia repair surgery.
Id. at 6, ¶ 32. The following morning, however, Dr. Korn’s office called SRCI to cancel
Plaintiff’s surgery due to an unrelated emergency. Id. at 6, ¶ 33; id. at 18.
On December 6, 2017, Dr. Korn finally performed Plaintiff’s first hernia surgery. Id. at
49. Dr. Korn reported no complications in the surgery. Plaintiff returned to SRCI two days later,
and Plaintiff’s pain was moderately controlled with medication. Id. at 49-50. Dr. Korn affixed a
“wound vac” to the wound, which uses a vacuum dressing to promote healing and wound
closing. Id. at 7, ¶ 37. The following week, Plaintiff met with Dr. Korn. Id. at 48. At this
appointment, Dr. Korn noticed a “lump” on Plaintiff’s stomach but denied Plaintiff’s request for
pain management. ECF 23 at 2.
On December 21, 2017, Plaintiff had a follow-up appointment, during which an outside
physician’s assistant reported that Plaintiff’s incisions were clean, dry, and intact without
erythema, swelling, or drainage. ECF 42 at 45. The physician’s assistant removed half of
Plaintiff’s staples from the surgical site, applied steri-strips, and recommended that Plaintiff’s
remaining staples be removed in a week. Id. at 45-46. Plaintiff contends that SRCI only removed
the remaining staples after Plaintiff sent “kytes to health services.” ECF 15 at 29. There is no
evidence, however, of these kytes in the record. Moreover, Plaintiff’s remaining staples were
removed in nine days.
SRCI medical staff removed Plaintiff’s remaining staples on December 30, 2017, and
noted that Plaintiff’s surgical site was “starting to get red and inflamed.” ECF 42 at 16. On
January 3, 2018, Dr. Ashley Clements noted that Plaintiff had “mild erythema/dry where the
staples were.” Id. at 15. From January 5–13, 2018, SRCI medical personnel provided Plaintiff
with “light medical treatment.” Id.
On January 19, 2018, at 2:50 a.m., medical personnel brought Plaintiff to the infirmary
on a gurney. Id. Plaintiff alerted nurses that he had migraines and chills during the past three
days, but he merely thought he was getting sick. Id. SRCI health staff observed that Plaintiff had
developed a one-inch opening to his abdomen with yellow fluid flowing out upon each
expiration. Id.; ECF 15 at 30. SRCI health staff cleaned his wound and called an ambulance.
ECF 42 at 15. Several hours later, Plaintiff had emergency surgery at an outside facility for an
“abdominal wall abscess due to a staphylococcus aureus.” Id. at 34-35. This wound infection
required “irrigation and debridement of abdominal wound vac.” Id. at 26. Plaintiff spent 18 days
in the hospital and received acute surgical care to prevent his abdominal organs from protruding
out of his separated wound. Id. at 42. In his follow-up appointment, Dr. Gulick advised Plaintiff
to continue routine wound care. Id. at 9, ¶ 48.
Plaintiff submitted two grievances after his emergency surgery. Plaintiff’s first grievance,
submitted on February 26, 2018, claimed that “it took so long to do surgery that they had to do
[a] muscle transplant from both sides to fix [Plaintiff’s] stomach hernias”; that his “stomach
popped open with infection”; that his softball sized wound was used as a “teaching tool” for the
nurses; that he had to “beg” for drugs when his dressing was changed given how much pain he
was in; that his hernias went from “silver dollar” size in 2015 to growing to “softball” size “by
the time [Plaintiff] had surgery”; and that he spent “18 days in the hospital after [his] emergency
surgery and three days in the ICU.” ECF 15 at 28-31. Plaintiff’s grievance was denied on
March 5, 2018 because it “failed to comply with ODOC rules.” Id. at 3, ¶ 14. In Plaintiff’s
second grievance he asked for more medication to keep him out of pain, provided updated
information on his medical condition, and requested that Dr. Gulick help manage his pain.
ECF 15 at 34. Plaintiff stated that “this is not the first time I’ve been left in pain by Dr. Gulick.”
Id. Ultimately, the nurse manager denied Plaintiff’s grievance on June 6, 2018, stating that
“[a]lthough you might disagree with your medical care plan, it is noted that the medical care you
are being provided is medically sound.” Id. at 33.
Plaintiff wore a wound vac for more than 140 days. ECF 42 at 9, ¶ 51. After the wound
vac was removed, Plaintiff’s wound had a “noticeable” odor. Id. at 11. Dr. Gulick reported that
“the bulge was initially a half dollar size but had since grown significantly” and it was in a
different location than Plaintiff’s other hernia on his right abdomen. Id. at 9, ¶ 51.
About two months later, on August 21, 2018, Plaintiff had a new 16-centimeter incisional
hernia, and Dr. Clements recommended surgery to TLCC. Id. at 9, ¶ 52. TLCC approved
Plaintiff’s surgery the next day and referred Plaintiff to Oregon Health and Science University
for hernia incisional repair on August 27, 2018. Id. at 27.
Plaintiff argues that Dr. Gulick’s denying Plaintiff's initial hernia surgery request in 2015,
and Dr. Hemphill’s prescribing Plaintiff antacid in January 2016 constitutes deliberate
indifference to Plaintiff’s serious medical needs. Plaintiff also argues that his poor treatment by
Drs. Gulick and Hemphill led to the cancelation of Plaintiff’s hernia surgery scheduled for
September 26, 2017, and that these doctors failed to ensure that the surgery was promptly
rescheduled. Plaintiff alleges that because of the delay in receiving his initial hernia surgery on
December 6, 2017, his surgery was more complicated, he suffered infections, and he developed a
wound that will not fully heal. Plaintiff seeks $4 million in damages.
DISCUSSION
Defendants argue that Drs. Gulick and Hemphill were not deliberately indifferent to
Plaintiff’s serious medical needs and thus did not violate Plaintiff’s rights under the Eighth
Amendment. Defendants also argue Drs. Gulick and Hemphill are entitled to qualified immunity.
Defendants further argue that Plaintiff’s claim against Superintendent Cain fails because no
reasonable juror could find that Mr. Cain was personally involved in any of the actions that
allegedly denied Plaintiff’s constitutional rights. Finally, Defendants raise two procedural
arguments: (1) that Plaintiff’s 2015 and 2016 claims are time-barred by the applicable two-year
statute of limitations; and (2) that Plaintiff failed to exhaust his administrative remedies in 2015
and 2016 as required by the Prison Litigation Reform Act (“PLRA”).3 The Court finds that there
is no genuine issue of material fact and that Dr. Gulick, Dr. Hemphill, and Superintendent Cain
did not violate Plaintiff’s rights under the Eighth Amendment. Because the Court grants
summary judgment to Defendants on these grounds, the Court declines to reach Defendants’
remaining arguments.
A. Applicable Legal Standards
The Eighth Amendment prohibits “cruel and unusual punishments,” and, therefore,
“places restraints on prison officials.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). It also
places duties upon prison officials to provide humane conditions of confinement, including,
“adequate food, clothing, shelter, and medical care, and . . . reasonable measures to guarantee the
safety of the inmates.” Id. (quotations and citation omitted).
The government has an obligation “to provide medical care to those whom it is punishing
by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). In this context, however,
“[m]edical malpractice does not become a constitutional violation merely because the victim is a
3 The Court previously denied Defendant’s motion for summary judgment in which
Defendants argued that Plaintiff failed to exhaust his administrative remedies under the PLRA.
The Court found that there was an issue of fact about whether administrative remedies were
reasonably available to Plaintiff after his hernia repair surgery on September 27, 2017, and his
emergency hernia repair surgery on January 19, 2018. ECF 26 at 5.
prisoner.” Id. at 106. In order to state a claim relating to medical care under § 1983, a prisoner
must “allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id. Allegations that a medical professional was negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment. Id.
To establish an Eighth Amendment violation under § 1983, a prisoner must satisfy “both
the objective and subjective components of a two-part test.” Toguchi v. Chung, 391 F.3d 1051,
1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). First, the
plaintiff must show “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s
condition could result in further significant injury or the unnecessary and wanton infliction of
pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle, 429 U.S. at 104). A
serious medical need is the kind of injury that “a reasonable doctor or patient would find
important and worthy of comment or treatment; . . . that significantly affects an individual’s daily
activities; or [causes] chronic and substantial pain.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th
Cir. 2000) (citation omitted).
Second, Plaintiff must show that the prison officials “acted with deliberate indifference”
in denying medical care. Toguchi, 391 F.3d at 1057 (citation and quotation marks omitted).
Under this standard, for example, a medical decision declining to order an x-ray ordinarily does
not represent cruel and unusual punishment but is a matter for medical judgment. Estelle, 429
U.S. at 107. Deliberate indifference may be shown “when prison officials deny, delay, or
intentionally interfere with medical treatment, or it may be shown by the way in which prison
physicians provide medical care.” Jett, 439 F.3d at 1096 (citation and quotation marks omitted).
A “claimant need not show that a prison official acted or failed to act believing that harm
actually would befall an inmate; it is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842. Therefore, a
defendant is liable if he knows that a plaintiff faces “a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.
B. Deliberate Indifference
Plaintiff argues that the following actions are sufficient to raise a genuine issue for trial
on the question of deliberate indifference: (1) Dr. Gulick’s denying Plaintiff’s hernia surgery
request; (2) Dr. Hemphill’s giving Plaintiff only antacid for his abdominal and hernia pain; and
(3) the cancelling of Plaintiff’s initially-scheduled hernia surgery and Defendants’ failing to
ensure that it was promptly rescheduled. Plaintiff’s medical needs are serious. In his inmate
communication forms, health service requests, and inmate grievances, Plaintiff informed SRCI
that he was in substantial pain. In addition, several SRCI medical professionals treated Plaintiff
from 2015 to 2018 for his substantial hernia pain. Also, a hernia is a serious medical condition
because failure to treat a hernia could cause further significant injuries. The Court, however,
must consider whether the acts allegedly committed by each doctor rise to the level of an Eighth
Amendment violation, which requires evidence beyond mere medical negligence or professional
malpractice.
1. Dr. Gulick
Plaintiff argues that Dr. Gulick violated Plaintiff’s Eighth Amendment rights by denying
Plaintiff’s initial hernia surgery request in 2015. Plaintiff, however, presented no evidence that
Dr. Gulick played any role in denying Plaintiff’s initial surgery request in 2015. Plaintiff’s claim
against Dr. Gulick is misplaced because he did not “deny, delay, or intentionally interfere with
medical treatment.” Jett, 439 F.3d at 1096. Instead, Dr. Gulick facilitated Plaintiff’s continued
medical treatment by sending Plaintiff’s surgery request to TLCC for further review.
Indeed, the record shows that TLCC, and not Dr. Gulick, was responsible for denying
Plaintiff’s initial surgery request on July 22, 2015. TLCC denied Plaintiff’s surgery request
because his weight presented a risk in this surgery; TLCC, however, also noted it would
reconsider its decision if there were significant weight loss. Dr. Gulick therefore was not
deliberately indifferent to Plaintiff’s medical needs because Dr. Gulick did not deny Plaintiff’s
surgery request, but instead forwarded it to TLCC for further review. Moreover, even if
Dr. Gulick had played a role in denying Plaintiff’s initial hernia surgery, the Ninth Circuit has
held that refusing to approve an inmate’s surgery for an umbilical hernia does not violate the
Eighth Amendment when the denial is based on legitimate medical opinions. See Hamby v.
Hammond, 821 F.3d 1085, 1093 (9th Cir. 2016).
Liberally construing Plaintiff’s filings, Plaintiff also argues that Drs. Gulick and
Hemphill were deliberately indifferent towards Plaintiff’s serious medical needs because
Plaintiff’s initial hernia repair surgery on September 27, 2017 was cancelled and was not
promptly rescheduled. Plaintiff, however, provides no evidence that either Dr. Gulick or Dr.
Hemphill were personally involved in the decision to cancel Plaintiff’s initial hernia surgery.
Plaintiff’s initial hernia surgery was scheduled outside of SRCI. Further, there is no evidence that
either Dr. Gulick or Dr. Hemphill had any influence or effect on scheduling matters outside the
prison or with regard to the doctor performing the surgery. Additionally, the only evidence in the
record is that Dr. Korn, the surgeon, canceled Plaintiff’s surgery because of an emergency.
Plaintiff’s surgery was rescheduled for approximately than 10 weeks later, on December 6, 2017.
This is not an unreasonable delay. Nor is there evidence to support that Drs. Gulick or Hemphill
had any influence or effect on the rescheduling of Plaintiff’s surgery with Dr. Korn.
Accordingly, the cancellation and rescheduling of Plaintiff’s surgery do not show a genuine issue
for trial of an Eighth Amendment claim against either doctor.
2. Dr. Hemphill
Plaintiff also argues that Dr. Hemphill violated Plaintiff’s Eighth Amendment rights in
treating Plaintiff with an antacid for his abdominal and hernia pain on January 26, 2016. Plaintiff
argues this treatment was constitutionally-deficit because Dr. Hemphill knew Plaintiff had a
hernia. Defendants argue that Dr. Hemphill’s decision to give Plaintiff an antacid in 2016 was
merely a difference of medical opinion between Dr. Hemphill and Plaintiff, which does not
amount to deliberate indifference. Defendants also note that Dr. Hemphill ordered an endoscopy
for Plaintiff in December 2015 to examine Plaintiff’s digestive tract before giving Plaintiff an
antacid. The parties therefore simply disagree about whether Dr. Hemphill provided “medically
acceptable” treatment under the circumstances.
“Deliberate indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.”
Toguchi, 391 F.3d at 1060. “Eighth Amendment doctrine makes clear that ‘[a] difference of
opinion between a physician and the prisoner—or between medical professionals— concerning
what medical care is appropriate does not amount to deliberate indifference.” Hamby, 821 F.3d
at 1092 (citing Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other
grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014)). Instead, “[t]o show
deliberate indifference, the plaintiff ‘must show that the course of treatment the doctors chose
was medically unacceptable under the circumstances’ and that the defendants ‘chose this course
in conscious disregard of an excessive risk to the plaintiff’s health.’” Id. (quoting Snow, 681 F.3d
at 988).
Plaintiff argues that Dr. Hemphill was deliberately indifferent to Plaintiff’s serious
medical need because Dr. Hemphill gave Plaintiff nothing more than an antacid for indigestion
even though Plaintiff had a hernia for a year. Specifically, Plaintiff asserts that the idea that
indigestion was the source of his pain was “absurd” and that any medical professional would
know and would investigate further. At best, Plaintiff’s argument raises concerns of medical
malpractice and emphasizes a difference in opinion between Plaintiff and Dr. Hemphill, which
does not amount to deliberate indifference. Hamby, 821 F.3d at 1092-93 (holding that a prison
medical personnel’s decision to deny hernia surgery was based on “legitimate medical opinions
that have often been held reasonable under the Eighth Amendment” and was only a difference in
opinion from the prisoner’s view that non-surgical treatment was constitutionally inadequate).
Viewing the evidence in the light most favorable to Plaintiff, it was not “beyond debate”
that Dr. Hemphill pursued a medically unreasonable course of treatment by giving Plaintiff an
antacid to treat pain potentially resulting from something in the digestive tract and ordering an
endoscopy. See id. at 1092. Plaintiff did not present any evidence to refute Dr. Gulick’s
declaration that Dr. Hemphill “took all necessary steps to ensure Kelsey’s medical treatment was
within the standard of care.” ECF 42 at 10, ¶ 55. Nor did Plaintiff present any evidence showing
that Dr. Hemphill’s course of treatment was “medically unacceptable under the circumstances.”
Hamby, 821 F.3d at 1092. Further, Plaintiff did not provide any evidence that Dr. Hemphill
treated Plaintiff with antacid and ordered an endoscopy “in conscious disregard of an excessive
risk to the plaintiff’s health.” Hamby, 821 F.3d at 1092. Indeed, by ordering the endoscopy the
month before Dr. Hemphill gave Plaintiff the antacid, Dr. Hemphill was directly responding to
Plaintiff’s complaints. In addition, along with giving Plaintiff an antacid in January 2016, Dr.
Hemphill advised Plaintiff on proper eating habits and nutrition to improve Plaintiff’s health.
Thus, Dr. Hemphill was not deliberately indifferent to Plaintiff’s serious medical needs because
he actively sought further to investigate the source of Plaintiff’s pain in ordering an endoscopy in
December 2015, gave Plaintiff an antacid to soothe his pain, and advised Plaintiff on nutritional
habits to improve Plaintiff’s health.
C. Supervisory Liability
“Liability under § 1983 arises only upon a showing of personal participation by the
defendant . . . There is no respondeat superior liability under § 1983.” Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Ninth
Circuit has explained that a defendant may be held liable as a supervisor under § 1983 only “if
there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the constitutional
violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).
Plaintiff contends that Superintendent Brad Cain oversaw all operations at SRCI and thus
is vicariously liable for SRCI medical personnel’s actions in depriving Plaintiff of his right to be
free from cruel and unusual punishment. Mr. Cain argues that he is not liable for any SRCI
medical personnel’s actions because there is no evidence that he was personally involved in any
deprivation of Plaintiff’s Eighth Amendment rights. The Court agrees with Mr. Cain. The fact
that Mr. Cain was a supervisor, by itself, does not render him vicariously liable under § 1983.
Taylor, 880 F.2d at 1045. Plaintiff does not provide any evidence that shows that Mr. Cain was
personally involved in any of the alleged constitutional violations or that describes a causal
connection between Mr. Cain’s conduct and any alleged constitutional violation. Indeed, Plaintiff
conceded that Mr. Cain was not personally involved in denying Plaintiff’s Eighth Amendment
rights. ECF 46 at 2. Further, because the Court finds that summary judgment is appropriate on
Plaintiff’s claims against Drs. Gulick and Hemphill, there are no underlying constitutional
violations for which Mr. Cain could be liable as a supervisor.
CONCLUSION
Defendants’ Motion for Summary Judgment (ECF 41) is GRANTED and this case is
dismissed.
IT IS SO ORDERED.
DATED this 20th day of April, 2020.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge